Virginia Department of Rehabilitative Virginia Department of Rehabilitative Services Services

August 2009August 2009

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ADA Basics

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Americans with Disabilities Act (ADA) Overview

• ADA – Signed into Law 1990– Covers employment, state and

local government services, private businesses, telecommunication

– Prohibits discrimination based on disability

ADA Amendments Act 2008 (ADAAA) Overview

• ADAAA– Signed into law 2008– Restores the intent and protections of the ADA– Provides a non-exclusive list of disabling

conditions covered by ADA– Primarily addresses definition of disability and

employment– EEOC has not yet issued regulations to support

ADAAA

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Who is Considered Disabled Under the ADA?

A person is considered disabled if they meet any of the following criteria:

1) Someone with a physical or mental impairment that substantially limits one or more major life activities …or

2) Someone with a record or history of…or

3) Someone who is regarded as having such an impairment

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Major Life Activities

• Caring for Oneself• Performing Manual Tasks

• Walking• Seeing• Hearing• Speaking• Breathing• Reproduction• Working• Sleeping

• Learning

• Sitting

• Standing

• Lifting

• Reading

• Thinking

• Interacting with Others

• Concentrating

• Major Bodily Functions (ADAAA)

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Record or History of Substantial Limitation

Person with a record or history of an impairment might include:• Cancer Survivor• Person with history of heart

attack• Brain Injury Survivor • Person with history of mental

illness, drug/alcohol addiction

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Regarded as Having a Disability

A person is regarded as having a disability if he/she:• Has a visible birthmark/scar • Is rumored to have a disability• Has an impairment that doesn’t limit

substantially, but others regard him/her as limited

• ADAAA: employer’s actions not thinking assessed

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Quiz

1) A woman has limited vision and cannot read anything in writing smaller than size 36 font (average documents are in size 10 or 12). Is she disabled?

2) A man has epilepsy but controls his seizures with medication. He hasn’t had a seizure in 5 years. Is he considered disabled?

3) A senior citizen can’t read registration forms because he dropped out of school in the third grade. Is he disabled?

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Answers

1) Probably so, because the “average person” can read 10-12 size font (if glasses correct the vision problem, then probably not disabled)

2) Yes. If a job refuses to hire him because he has a history of seizures, then yes under second prong. If no different treatment, still can be covered under ADAAA neurological condition.

3) No! A person is only disabled if their limitation is caused by a physical or mental impairment. Dropping out of school is not an impairment.

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Who is NOT covered by the ADA

• People currently using illegal drugs are NOT protected

• Gay, Lesbian and Transgender individuals are not considered disabled.

• People who compulsively gamble, set fires or steal are not considered disabled.

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ADA Organization

• The ADA is set up in Titles:– Title I: Employment– Title II: State and Local Services– Title III: Public Accommodations– Title IV: Telecommunication– Title V: Miscellaneous

– We’ll address employment last, in detail

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Title II:State and Local Government

• Four broad areas of requirements:

– General Nondiscrimination

– Program Accessibility

– Equally Effective Communication

– Employment

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Government Programs and Services Covered by the ADA

• Courthouse• Library• Recreation Center and Senior Center• Social Services (foster care, food stamps)• Mental Health (including emergency and hotlines)• Schools• Polling Places• Information (website, phones, newsletters)• Vocational Rehabilitation Services• General Assembly/Legislature

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State and local government must provide full program access to people with disabilities.

One of each type of program must be accessible but not at every location

Agencies that receive government contracts must comply as well.

Title IIGeneral Requirements

Providing Program Access

Program access can be provided by:

• Modifying policies and procedures

• Moving services to accessible locations

• Providing auxiliary aids and alternative formats

• Removing physical barriers

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State and Local Government Action Steps

• Designate a responsible employee

• Provide notice of ADA requirements

• Establish a grievance procedure

• Conduct a self-evaluation

• Develop a transition plan if locality employs more than 50 and structural barriers exist.

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Title III Public Accommodations

Businesses covered:

Restaurants/Bars Clothing Stores Movie Theaters Grocery Stores Arcades Bowling Alleys Ball Parks and

Stadiums Apartment Leasing

Offices

Concert Halls Skating Rinks Hotels and Motels Campgrounds Convenience Stores Car Dealerships Doctor and Dentist

Offices, Hospitals Amusement Parks Museums Malls

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Public Accommodations

Public Accommodations cannot:• Exclude people with disabilities based solely

on their disability• Screen out people with disabilities with

eligibility criteria • Require people with disabilities to participate in

separate programs or accept accommodations they do not want

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Policy Barriers

Businesses must modify policies that prevent access

Policy Barriers could include:• Requiring a driver’s license to get a membership card• Requiring people with mobility aids to have a

companion with them• Requiring people with disabilities to use separate

programs or come at special times• No dogs allowed rules extending to service animals

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Readily Achievable Barrier Removal

Public Accommodations must conduct Readily Achievable Barrier Removal• Readily Achievable Barrier Removal means

getting rid of barriers that are cheap and easy to remove

• “Cheap and Easy” is a relative term• Barrier removal is an ongoing process• Tax incentives are available to help pay for

access

Architectural Barriers and Solutions

Barriers• Stairs• High counters• Narrow doorways• Lack of accessible

parking• Round doorknobs

Solutions• Ramps• Drop down shelf/table• Offset hinges• Restripe parking lot,

signage• Hardware that can be

used with a closed fist21

ADA Accessibility Guidelines (The Standards)

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Title IV Telecommunication

• Each state provides relay services so that individuals with communication disabilities can communicate with hearing individuals.

• Operators relay calls between TTY user and telephone user.

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Telecommunication

• Closed captioning must be provided for federally funded programs

• With the Telecommunication Act of 1996, requires emergency broadcasts to be accessible for people with disabilities (example: weather emergencies; 9/11/01)

• Closed captioning and emergency information cannot be obscured by “crawlers” on screen.

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Filing Complaints

• Title II State and Local Government:• Filed with the Department of Justice (DOJ) or

Designated Agency

• Title III Public Accommodations:• Filed with DOJ

• Title IV Telecommunication:• Complaints are filed with the Federal

Communications Commission (FCC)

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Title IEmployment and the ADA

Employers covered:•All state and local government employers•Private employers with 15 or more employees

Employers not covered:•Churches/Synagogues/Mosques•Indian Tribes

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Title I Employment Provisions

Ensure that qualified individuals with disabilities:

• Have comparable access to the employment process

• Are afforded an interactive process to determine reasonable accommodation

• Are provided access to all benefits of employment including access to related services (e.g., gym, transportation)

Title I: Employment

• ADA is NOT affirmative action

• An applicant must be able to perform the ESSENTIAL FUNCTIONS of the job with or without REASONABLE ACCOMMODATIONS to be considered qualified

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Key TermsEssential Functions andReasonable Accommodation

Essential Functions:•The core parts of the job that if taken away would fundamentally alter the position

Reasonable Accommodation:•Any change in the work environment or way things are done that enables a person with a disability to enjoy equal employment opportunity

Determining Essential Functions

Consider:

• History of others in job

• Consequence if task not done

• Ability of others to do task

• Specialized skills required of job

• Job description

When is driving an essential function?30

3 Types of Reasonable Accommodations

1) Modifications to application process to ensure access

2) Modifications to work environment or to manner or circumstances of how work is done to allow qualified employee to do the job

3) Modifications to enable worker to enjoy benefits and privileges of employment

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Reasonable Accommodation

Examples

• Making existing facilities readily accessible and useable by employees with disabilities

• Job restructuring• Part-time or modified work schedules• Reassignment to vacant positions• Adjustment or modifications of examinations

(even medical exams and drug testing), training materials, or policies

• Providing qualified readers or interpreters

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Reasonable Accommodation Requests -Timing

• May be made at the beginning of the hiring process to enable the applicant to participate fully

• May be made after the job is officially offered to the applicant

• May be made after the employee is on the job as employment conditions or the person’s disability changes

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Reasonable Accommodations

Average Cost of Accommodations:

46% NO COST

45% One time costAverage $500.00

Source: Job Accommodation NetworkWorkplace Accommodations Low Cost, High Impact, 2009

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Undue Hardship

• Significant Difficulty or ExpenseThe employer must provide an accommodation unless it would constitute a significant difficulty or expense.

• What might constitute a valid undue hardship?

Activity:Accommodation

Needs

DisabilityPerson with:

• Visual Impairment• Epilepsy• Diabetes• Intellectual Disability• Hearing Impairment• Mental Illness• Wheelchair user

JobWorking as a:

• Secretary• Waiter• Receptionist• Teacher• Nurse• Stock clerk• Telemarketer 36

Accessibility Throughout the Employment Process

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Job Postings and Applications

• Job Posting needs to be accessible– Make sure online job postings and

applications can be read by screen readers, are available in larger fonts, etc.

– And/Or– Provide an alternative way to find job

postings/apply for jobs– Provide alternative format for applications

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Job Postings and Applications

• Applications should not have questions

asking:– History of hospitalizations– Medical or physical

impairment– Workman’s compensation

history– Current medicationsBecause all answers may tend to disclose a disability

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The Interview

• Job seeker is responsible for requesting accommodationsAccommodations might include:

• Accessible location

• Interpreter

• Accommodations in testing

• Other

• Employer is responsible for paying any costs related to accommodation

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Disability Related Inquiries:Pre-Offer Stage

• Before a job is offered, the employer may only discuss the person’s ability to perform specific tasks.

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Disability Related Inquiries

Interviewer MAY Ask Questions About:

An applicant’s ability to perform job-related duties

An applicant’s previous job experienceSkills required to perform the jobEducational background

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Disability Related Inquiries

Interviewer MAY NOT Ask About:

The nature or extent of the applicant’s

disability

If the applicant or anyone in his/her family

has a disability

The applicant’s health

If the applicant has a history of emotional illness

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Disability Related Inquiries (cont’d)

Interviewer MAY NOT Ask:

If the applicant has ever had an injury or disease

If the applicant has ever seen a psychiatrist

If the applicant has ever had a drug or

drinking problem

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Pre-offer Inquiries

• NO questions about health or disability before offering a position to that applicant.

• No medical exams before job offer

• Drug tests are permitted if required of all applicants.

Exception

• If the applicant has an obvious visible disability, or the employee has disclosed the disability and the disability appears to limit his/her ability to do the job, the employer may ask the applicant to describe or demonstrate how he/she would do the job

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Pre Employment Screening and Testing

Must be job related and consistent with the business needs

Must be given with reasonable accommodation unless the specific skill requiring accommodation is being tested

-Examples

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Medical ExaminationsAn employer CANNOT require a medical exam or

make medical inquiries BEFORE a job offer is made

Post Job Offer medical screening

• Must happen after the candidate has met all other prerequisites

• Must be conducted on all candidates

• Only disqualifications related to the job are allowed

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To Disclose or Not to Disclose

• An individual does not need to disclose about his or her disability unless requesting an accommodation.

• Disclosure must be

kept confidential.

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Reasonable Documentation

• Documentation from an appropriate professional concerning the individual’s disability and functional limitations to verify the existence of a disability and the need for an accommodation

Confidentiality• Employers must keep all information concerning

the medical condition or history of its applicants or employees confidential.

• This includes medical information that an individual voluntarily tells his/her employer.

Conduct and Performance Standards• TRUE OR FALSE

– Persons with disabilities may be held to the same conduct and performance standards as other employees – even if the behavior being exhibited is caused by the employee’s disability. .

TRUETRUE

• Persons with disabilities may be held to the same conduct and performance standards as other employees – even if the behavior being exhibited is caused by the employee’s disability.

• At the same time, an employer must consider accommodations that may help the employee meet the standard.

Safety and Direct Threat

• Blanket exclusions of particular conditions are difficult to justify.

• Decisions must be based on factual evidence and not unbased fears.

• The courts are still deciding about the issue of direct threat to self and what the employer role is in that situation.

Reasonable Accommodation and Safety – Direct Threat

Factors to determine if a direct threat:

• The duration of the risk

• The nature and severity of potential harm

• The likelihood that the harm will occur

• The imminence of the potential harm

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Tax Incentives

• Work Opportunity Tax Credit: Encourages employment of certain targeted groups including SSI recipients and vocational rehabilitation referrals

• Small Business Tax Credit:

Pays for barrier removal, auxiliary aids, accommodations

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More Tax Incentives

• Architectural/ Transportation Tax Deduction:Pays for removal of physical and transportation barriers

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Title I Enforcement

• File a complaint with the EEOC

• File a complaint with local or state Human Relations Commission

• Alternative Dispute Resolution

Scenario 1

• Danielle, a manual wheel chair user, has a job interview today with Farmers Market Luxury Produce.  She is applying for a basic position in their bakery department. In the interview, the store manager shares the duties which include baking, storing and decorating cakes and cleaning the work area. He indicates to Danielle that he does not feel she is an appropriate fit for the job because the bakery tables are too low and she would not be able to carry the cakes. He thanks her for her time and ends the interview.

•  What factors are related to ADA in this scenario?

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Scenario 2Scenario 2

• Johnny built homes with ABC Construction for ten years.  Johnny fell from a fork lift and was rushed to the hospital. Management at ABC Construction followed-up with Johnny at the hospital and learned he has Parkinson’s Disease. It was agreed that Johnny would remain out of work four weeks and provide management with bi-weekly updates from the doctor. Johnny updated management on his progress as was agreed.  Johnny returned to work and he assured his boss that he was “never better.” Management then informed Johnny that he was terminated.

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Title I Resources

• DBTAC: Mid Atlantic ADA Center (800) 949-4232 (v/tty)

www.adainfo.org

• Job Accommodation Network800-526-7234 (v/tty)www.jan.wvu.edu

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Title I Resources

• Equal Employment Opportunity Commission800 669-4000 (v)800 669 6820 (tty)www.eeoc.gov

• Virginia ADA Coalition/Endependence Center, Inc.(757) 461-8007 (v) (757) 461 7527 (tty)email: kgonzalez@endependence.org